Much has been said recently about "business method" patents. I've heard it said many times that business method patents are a "new" type of patent. The truth is that "business method patents" were never disallowed, and there's nothing new about business method patents.

What really happened is that there was once a theory that a patent claim could be rejected if it recited a method of doing business and the Federal Circuit (a court specifically created to hear and decide appeals involving patent cases) recently said that the theory was incorrect and no such grounds for rejection ever existed. This recent opinion did not change the law, only clarified it.

As for "business methods," I don't believe such a classification is meaningful in any way in patent law in the U.S. (with the possible exception of procedural matters within the Patent Office). All of the "business method" cases of which I'm aware merely mention "a method of doing business" in dicta (i.e., comments of the court with no legal effect) or as alternative grounds for rejection. In essence, courts have, from time to time, rejected one or more claims of a patent for being no more than a method of doing business and for not being new (lacking "novelty").

In such cases, the court unfortunately mixes two distinct issues: utility and novelty. I have never written a claim so as to avoid being considered a method of doing business. In my opinion, characterization of a patent claim as a method of doing business merits virtually no consideration whatsoever in U.S. patent law.

There has been much academic debate about business method patents recently. However, I find the discussion to be largely about a distinction without a difference. You should be aware, however, that my views on the topic are minority views.

Outside the United States, the classification of "business methods" is important. For example, the European Patent Office doesn't allow (and won't serve as a PCT Search Authority for) business method patent applications. What complicates the issue in jurisdictions in which "business methods" are unpatentable is the lack of a clear definition of business method. For the moment, I generally note that any invention involving a financial transaction involves extra risk outside the United States -- even if the financial transaction is implemented using cryptography, signal processing, and other clearly patentable techniques.

Lastly, I've read stories in the media in which an assertion is made (either explicitly or implicitly) that business method patents are regularly being allowed without regard to novelty and non-obviousness requirements. This is flatly untrue. The entire issue of "business methods" pertains only to the utility requirement; novelty and non-obviousness are separate requirements that must be met, even by applications for business method inventions. That doesn't mean that the U.S. Patent and Trademark Office never makes a mistake when evaluating novelty and non-obviousness, but generally no more so than for other technological classifications. In other words, even business method patents must be novel and non-obvious.